Bennett v. Boyd Gaming Corporation

Filing 117

ORDER APPROVING CLASS ACTION SETTLEMENT. This action is dismissed with prejudice, without costs to any party, except as set out in the order. The Court reserves exclusive and continuing jurisdiction over the implementation of the Settlement, including enforcement and administration of the Amended Settlement Agreement. Signed by Chief Judge William H. Steele on 11/8/2016. (tgw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JASON BENNETT, on behalf of himself
and all others similarly situated,

Civil Action No. 14-00330-WS-M

Plaintiff,
v.
BOYD BILOXI, LLC d/b/a IP Casino
Resort and Spa,
Defendant.
ORDER APPROVING CLASS ACTION SETTLEMENT
The Court having held a Final Approval Hearing on November 7, 2016, and
having considered all matters submitted to it at the Final Approval Hearing and
otherwise, and finding no just reason for delay in entry of this Order, and good cause
appearing therefore,
It is hereby ORDERED AND DECREED as follows:
1.

This Order incorporates by reference the definitions in the Amended

Settlement Agreement, and all terms used herein shall have the same meanings as set
forth in the Amended Settlement Agreement unless set forth differently in this Order. The
terms of this Court's Preliminary Approval Order (Doc. 100) are also incorporated by
reference in this Order.
2.

On July 16, 2014 Plaintiff Jason Bennett filed a class action lawsuit

alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. §§ 227

(“TCPA”). On October 7, 2014, Plaintiff filed a First Amended Complaint against Boyd
Biloxi, LLC d/b/a IP Casino Resort and Spa (“Boyd Biloxi”) alleging that calls it made
offering Plaintiff and his putative class free tickets to concerts or other special
promotions violated the TCPA, as the call recipients had not given prior express written
consent to Defendant to make such calls.
3.

Class Conditionally Certified. The Settlement Class was conditionally

certified for settlement purposes in this Court's Preliminary Approval Order:
All persons who, since October 16, 2013 through May 11, 2016, received a
telephone call to a residential or cellular telephone number initiated by, on
behalf of or at the direction of Boyd Biloxi which used an artificial and/or
pre-recorded voice message or was placed by an automatic telephone
dialing system.
(Doc. 100). As stated below, the Court grants final certification of the Settlement
Class.
4.

Pre-Notice Exclusions and Special Class Members. In its Preliminary

Approval Order, the Court determined that 52 of the putative Class Members should be
excluded from the class based on their appearance on self-exclusion lists maintained by
state gaming regulatory boards. Also, the Court granted the parties’ request to include 35
individuals who were identified as persons no longer allowed on Defendant’s premises.1
The Court ordered that the special notice proposed by the parties be sent to those 35
members. Based on the information provided to the Court regarding the mailing of the
notice, the Court finds that special notice has been delivered consistent with its previous
1

Defendant initially identified 25 individuals no longer permitted on the premises but later requested to add an
additional 10 and that request was granted. (See Doc.s 101 & 102)

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order. The Court further finds the 52 excluded members shall be excluded from the class
addressed in this Final Approval Order.
5.

Jurisdiction. The Court has jurisdiction over the subject matter of this

Action and all Parties to the Action, including all Settlement Class Members, including,
without limitation, jurisdiction to approve the proposed Settlement, grant final
certification of the Settlement Class, and dismiss this Action with prejudice.
6.

Final Certification of Settlement Class Pursuant to Rule 23. For the

reasons set out in its Preliminary Approval Order, the Court finds that, for purposes of
approving and effectuating the Settlement embodied in the Amended Settlement
Agreement, and only for such purposes, the prerequisites for certifying this Action as a
class action under Federal Rule of Civil Procedure 23(a) and (b)(3) have been met.
Therefore, the Court hereby grants final certification of the class described herein.
7.

Delivery of Notice. Notice was mailed to a total of 68,300 class

members. The Claims Administrator reports that, upon exhaustion of the its re-mailing
procedures, as of November 3, 2016, 585 re-mailed notices were returned as
undeliverable. This renders a presumed delivery rate to the class of 99.1%. The Claims
Administrator is directed to maintain a list identifying the class members to whom notice
was returned as undeliverable and provide that list to counsel.
The Claims Administrator also established, on August 18, 2016, a stand-alone
website to provide notice of the Settlement, located at www.bennettcpacase.net and
established a toll-free call center on August 22, 2016.

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The Court finds that Class Notice was delivered in the manner required as
set out in the Preliminary Approval Order. The Court further finds that delivery
and attempted delivery of returned notices have been executed as required.
Pursuant to Federal Rule of Civil Procedure 23(c)(2) and (e), the Class Notice provided
to the Settlement Class constitutes the best and most practicable notice under the
circumstances. The Class Notice and related Class Notice plan was designed to provide
notice in the manner most likely to be received and read by Settlement Class Members.
The Claims Administrator, through Defendant, has filed with the Court proof of
compliance with the Class Notice plan in accordance with this Court's Preliminary
Approval Order. The Settlement Class received valid, due, and sufficient notice that
complied fully with Federal Rule of Civil Procedure 23 and the Constitutional
requirements of due process.2 The Court hereby finds and concludes that the Class Notice
provided by the Claims Administrator to the appropriate state and federal officials
pursuant to 28 U.S.C. § 1715 fully satisfied the requirements of that statute.
8.

Requests for Exclusion. The deadline for submission of exclusion

requests was October 4, 2016.

Of the 68,300 notices mailed, only 33 class

members submitted requests for exclusions. The Court finds that these individuals
are properly excluded and Court hereby Orders that each of those individuals is
2

The Court makes no determination as to whether due process requirements have been met with respect to the
individuals whose notices were returned as undeliverable. See, e.g., Juris v. Inamed Corp., 685 F.3d 1294, 1321
(11th Cir. 2012) (“Where certain class members’ names and addresses cannot be determined with reasonable efforts,
notice by publication is generally considered adequate.”). The parties did not provide for notice by publication.
Nevertheless, as to all other class members, the Court is satisfied that the method of class notice delivery and remailing is reasonable and meets the requirements of Rule 23.

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excluded from the Settlement Class. The excluded individuals as identified in Exhibit A
of the settlement administrator’s Fourth Report (Doc. 115). Those individuals will not be
bound by the Agreement, and neither will they be entitled to any of its benefits. Those
individuals will not be bound by this Order, any final judgment or the releases herein.

9.

Claims for Class Benefits.

The deadline for filing claims is

December 6th. The Court has been informed that as of November 3, 2016, 9,513
claims forms have been received, or 13.94 % of the class. The Court was further
informed that a number of these forms were determined to be improperly
completed and that the administrator is contacting these class members in an
attempt to have the defects corrected. The corrective measures described by the
Administrator are reasonable and the Court directs the Administrator to carry on
those measures throughout the claims period.
10.

Class Representative.

Plaintiff Jason Bennett was appointed Class

Representative in this Court's Order Preliminarily Approving Class Action Settlement
and has fairly and adequately represented the Settlement Class throughout the
proceedings and is hereby finally confirmed and appointed as Class Representative. Mr.
Bennett, through counsel, has submitted a request for a class representative award, to be
paid by the Defendant and separate from the class benefits as provided in the Amended
Settlement Agreement. (Doc. 111). The Court will issue a separate ruling on that request.
11.

Class Counsel. Having considered the factors set forth in Federal Rule of

Civil Procedure 23(g)(1), the Court finds that Class Counsel have fairly and adequately
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represented the Settlement Class throughout the proceedings and for purposes of entering
into and implementing the Settlement, and thus hereby reiterates the appointment of
Class Counsel as Class Counsel to represent the Settlement Class. Plaintiff has submitted
a request for an attorneys fee award and reimbursement of litigation costs, to be paid
separate from the class benefits and by the Defendant as provided in the Amended
Settlement Agreement. (Doc. 111). The Court will issue a separate ruling on that
request.
12.

Objections. The Court has received only two responses from class

members, both pro se, which express any negative reaction to the notice. (Letter
from Steve and Judy Streeter (“Streeter Letter”) (Doc. 105); and Letter from
William Kirschner (“Kirschner Letter”) (Doc. 106)). Neither of these letters
addresses, much less criticizes, any specific term of the settlement. Both are brief
and contain generalized commentary, devoid of any specific objection or reason
for why the settlement should not be approved. Rule 23 secures a class member’s
right to “object to the [settlement] proposal.” F.R.Civ.Pro. 23(e)(5)(emphasis
added). Therefore, class members have standing only to object to the terms of the
settlement. Commentary which does not address the fairness of the settlement is
not a proper objection. Ragsdale v. Turnock, 941 F.2d 501, 505 (7th Cir. 1991).
The Court finds that that Streeter and Kirschner letters fail to properly object to
any specific aspect of the proposed settlement. In any event, to the extent those

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letters may constitute cognizable objections to the settlement, the Court finds that
none of them is well founded and each is OVERRULED in its entirety.
13.

Final Approval of Class Settlement. Pursuant to Federal Rule of Civil

Procedure 23(e)(2), the Court finds, after a hearing and based upon all submissions of the
Parties and interested Persons, that the Settlement proposed by the Parties is fair,
reasonable, and adequate. The terms and provisions of the Agreement are the product of
lengthy, arm's-length negotiations. Approval of the Settlement will result in substantial
savings of time, money, and effort to the Court and the Parties, and will further the
interests of justice. The Court hereby finally approves the Agreement, the exhibits, and
the Settlement contemplated thereby, and directs its consummation pursuant to its terms
and conditions. Payments to the Class Representative and attorneys' fees awarded shall be
paid by Defendant within thirty (30) days after the Effective Date, in accordance with the
Amended Settlement Agreement.
14.

Class Members Bound and Claims Released.

All Settlement Class

Members who have not been excluded above are bound by this Order, the accompanying
Final Judgment, and by the terms and provisions of the Amended Settlement Agreement
incorporated herein.
The Plaintiff and each and every one of the Settlement Class Members
unconditionally, fully, and finally release and forever discharge the Released Parties from
the Released Claims as provided in the Amended Settlement Agreement. In addition, any
rights of the Class Representative and each and every one of the Settlement Class

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Members to the protections afforded under Section 1542 of the California Civil Code
and/or any other similar, comparable, or equivalent laws, are terminated.
15.

Dismissal. The Court hereby dismisses the Action, as defined in the

Agreement, with prejudice, without costs to any party, except as awarded above.
16.

Payment of Claims and Implementation of Settlement. The Parties and

their counsel are hereby directed to implement the Amended Settlement Agreement
according to its terms and provisions. The Court hereby directs the Claims Administrator
to deliver class benefits to all members who have submitted timely and proper claims, as
determined by the Claims Administrator pursuant to the Amended Settlement Agreement.
Those benefits shall be delivered as soon as practicable following the claims deadline, but
not later than January 31, 2017.
17.

Miscellaneous. The Amended Settlement Agreement (including, without

limitation, its exhibits), and any and all negotiations, documents, and discussions
associated with it, this Order and the final judgment, or the fact of the Settlement shall
not in any event be construed as, offered in evidence as, received in evidence as, and/or
deemed to be, evidence of a presumption, concession or an admission of liability, fault or
wrongdoing, or in any way referred to for any other reason, by any Class Representative,
Settlement Class Member, Defendant, or Released Party in the Action or in any other
civil, criminal, or administrative action or proceeding, except for purposes of enforcing
the provisions of the Amended Settlement Agreement, this Order and the final judgment.

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The parties are directed to implement the Settlement and the Court reserves
exclusive and continuing jurisdiction over the implementation of the Settlement,
including enforcement and administration of the Amended Settlement Agreement.
There is no just reason for delay in the entry of this final Order and separately
entered Judgment and immediate entry by the Clerk of Court is expressly directed.
By attaching the Amended Settlement Agreement as an exhibit and incorporating
its terms herein, the Court determines that this Order complies in all respects with Federal
Rule of Civil Procedure 65(d)(1).
The Court will separately enter a final judgment in accordance with Federal Rule
of Civil Procedure 58.

DONE and ORDERED this 8th day of November, 2016.
s/WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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